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Ben Nannas, however, says that in this case, the lender cannot collect from the guarantor at all. Said Rabbi Ishmael to him, "Why?" Explains Ben Nannas: If a creditor was strangling someone in the street, and this fellow encountered them and said to the creditor, "Leave him be, and I will give you the money that he owes," - the guarantor is not liable because the lender did not lend the money trusting the guarantor in the first place.
Said Rabbi Ishmael, "One who wishes to become wise should occupy himself with the study of monetary law," for no other branch of Torah law provides the human intellect with as wide-ranging a field of study for reasoning and analysis. Continued Rabbi Ishmael, "And one who wishes to occupy himself with the study of monetary law should serve Shimon ben Nannas." Nevertheless, the law follows Rabbi Ishmael.
Art: Young Scholar in His Study by Pieter Codde
One who loans money to his fellow and records the loan in a document signed by witnesses may collect even from encumbered properties. The document's existence, together with the witnesses, makes the loan public knowledge. Thus, potential buyers can investigate and find out about the lien created by this loan. Therefore, they accept the risk. Should the borrower default on the loan later, the lender can collect the land from these buyers. Even if the document does not mention the lien, it is assumed to be the omission made by the scribe, and the lien is still presumed.
However, suppose the loan is taken out before the witnesses but not recorded in a document. In that case, the creditor can collect only from unencumbered properties, that is, fields that are still in the borrower's possession.
If the lender produces against the borrower a note written in the borrower's own hand, the lender still collects only from the unencumbered properties.
Art: Regents of the Wallon Orphanage by BARTHOLOMEUS VAN DER HELST
When one guarantees payment on somebody's loan, even when the lender says, "I will have the right to collect from either the borrower or the guarantor," he still cannot go to the guarantor if the borrower has apparent resources to pay. Only when the guarantor accepts a higher responsibility with language like "give him the money, and I accept on myself the payment" can the lender go to the guarantor without attempting to collect from the borrower.
Rabban Shimon ben Gamliel says that even in that case, the lender cannot do it, but this is one of the three cases where the law does not follow him.
Art: Interior with smoking and a drinking man by the fire by Quiringh Gerritsz. van Brekelenkam
If a man says to his son on his deathbed, "One document among my several loan documents has been paid, but I don't know which one it is," – all the loan documents are treated as paid since each borrower can claim that it is his debt that is paid. If two loan documents were from a single borrower, the larger one is considered paid.
One who lends money to his fellow based on a guarantor may not collect first from the guarantor. However, if the lender said to the guarantor at the time of the loan, "I am making this loan on the condition that I should be able to collect from whomever I wish," - then he may indeed collect from the guarantor.
Art: Portrait of Victor Hugo on his deathbed by Leon Daniel Saubes
If there were two brothers, one poor and one rich, and their father died and left them a bathhouse or an olive press, then if the father made those properties for renting, the brothers can divide the rent. However, if they were made for personal use, the rich brother can insist that they are kept for shared use, even though the poor brother cannot take advantage of it. The rich brother can say to him, "Buy slaves so that they should use the bathhouse; buy olives and press them."
If there were two men in the same town, and their names were Yosef ben Shimon, they could not produce a loan document for collection against each other because each could claim that he was the lender, and nobody could collect from one of them. Therefore, they should add their grandfather's name or some distinguishing sign.
Art: Lucas and Cornelis de Wae by Antoon Van Dyck
One who repaid part of his debt will naturally want to ensure that the loan document will not be used against him to collect the debt twice. Unlike in the previous case, they do not have a third party that they both trust. They cannot add to the loan document because an unscrupulous lender can cut this off. Nor can they add to the top of the document because witnesses must sign immediately below the last line.
Rabbi Yehudah says they should write a new loan document for the remainder of the debt, but the borrower should not be forced to guard the receipt. Rabbi Yossi says they should write a receipt, and the borrower should guard it since people pay more significant debts faster and since "a borrower is a servant to the lender." The accepted law follows Rabbi Yossi.
Art: Signing of the preliminary Treaty of Paris
If the occupant of a property comes to litigate with a previous owner concerning ownership of the property and asserts that he can prove that the property is his with both a deed and a chazakah (three years occupancy) – then Rebbi says that he is judged based on the deed. Rabbi Shimon ben Gamliel says that he is judged based on chazakah. What is the reason behind their argument?
Rav Dimi says that the deed was in the name of a third party, and the argument is whether the deed transfer also transfers property. Abaye says that invalid witnesses signed, and the argument is about which witnesses accomplish the transfer – those who sign or those who see it. R’ Avina (Ravina) says that they argue whether one who made a superfluous claim is now required to corroborate it, with Rebbi saying “no” and Rabbi Shimon saying “yes.”
Art: Notary Kohne and His Clerk by Wybrand Hendriks
When a creditor attempts to collect his debt, he lodges a complaint in court, proffering his loan document as proof. If the debtor cannot pay, the court tears up the loan document and provides the lender with a collection warrant. The lender searches for assets belonging to the borrower, and when he finds those subject to his lien, he takes the collection warrant to court in that locale. The court tears up the collection warrant and issues a repossession warrant. When the lender takes possession of the property, the court tears up the repossession warrant and writes a certificate of appraisal, which is used when the borrower later pays the amount and reclaims his field.
If someone claims that he lost a deed of sale, they write a replacement for him but omit the repossession guarantee to prevent the possibility of him later collecting twice, breaking the sequence outlined above.
Art: The Haarlem Painters' Guild by Jan de Bray
Imagine that one has repaid part of his debt. The borrower and lender did not want to go through the trouble of writing a receipt. By right, the lender should keep the loan document, but the borrower feared that the lender would dishonestly collect the entire loan again. Therefore, they deposited the loan document with a third party.
The lender then told the third party, "If I don't pay the balance by such-and-such date, give the document to the lender." This meant that he forfeited the partial payment. In the end, he did not pay. Rabbi Yossi says that the third party should give the loan document to the lender. Rabbi Yehudah says that he should not give it back because the borrower never really meant it.
After much deliberation, the law is not like Rabbi Yossi – promises like this one are not binding.
Art: Pieter van Veen, his son Cornelis and his clerk Hendrick Borsman by Jan van Ravesteyn
Generally, for documents to be legally valid, they must be written with the knowledge and consent of the person to whose detriment they are. For example, a loan document can be written only with the borrower's authorization. An exception is a Get, a bill of divorce.
A scribe may write a Get for a man even if his wife is not with him. In the eleventh century, Rabbeinu Gershom instituted a ban against divorcing one's wife against her will. He may also write a receipt for a woman, stating that she received her Ketubah, even if her husband is not with her, and the husband pays the fee.
A loan document may be written for the borrower even if the lender is not with him, but not for the lender unless the borrower is with him and the borrower pays the fee.
Art: Titus at his desk by Rembrandt
If a loan document restates the amount in different units, and these don't agree, such as "so-and-so borrowed 100 zuz, which is 20 sela" - whereas in truth, 20 sela constitutes only 80 zuz - the lender can collect only the lesser of the two amounts, 20 sela in our example, following the rule that "to extract money from his fellow, the burden of proof lies with the claimant."
If the amount becomes erased, such as "... selas," a minimum of 2 is assumed.
The amount of the loan is mentioned in the upper portion of the document and then again at the end of the document, as in "I have accepted upon myself and upon my heirs a lien for the aforementioned sum of X zuzim," - so that if a letter is missing from the statement in the lower portion, it can be learned from the upper one.
Art: The Wedding Contract by Joos van Craesbeeck
Said Rav: "From three transgressions, no man is saved each day: thoughts of sin, lack of concentration in prayer, and speaking negatively about others." Did Rav really mean that everybody engages in negative speech daily? Rather, he meant a hint of negative speech by using body language and voice inflection.
Rabban Shimon ben Gamliel said, "In a place where both open and bound documents are used, if one instructs to write an open one, but the scribe wrote a bound one, it is acceptable because he only said it by way of example."
Rabbi Shimon ben Yochai also subscribes to the "by way of example" idea, as in the case of a woman who appointed an agent to accept her betrothal money of a silver dinar, but the agent accepted a gold dinar. She mentioned the silver dinar only by way of example, and she is betrothed with a golden dinar.
Art: Louis Charles Moeller - The gossips
Rabbi Chanina ben Gamliel said that although in a bound document the witnesses should sign on the outside, nevertheless if they signed on the inside, it is valid, since one can unbind it and convert it to a regular document.
Rebbi offered a rebuttal: the dating system on the two types of documents is different. Jews dated their documents by the year of the rule of the current monarch. Governments used to add a year to the number of years of the current king to proclaim that a relatively new monarch was already established. The Sages, desiring to make a bound document very complex, also added a year for bound documents but not for regular ones. One could unbind the document, effectively changing the loan date, receive the payment, pretend to have lost the loan document, offer a receipt, and then collect the second time.
However, according to Rabbi Chanina, a receipt is never used.
Art: Self-Portrait with a Vanitas Still-Life by Edwaert Collier
One empty line between the document's text and the signatures of witnesses is to be expected, but two lines make it invalid because this opens up the document to forgery. The space of the two lines is measured in the larger handwriting of witnesses and not in the smaller handwriting of the professional scribe. We assume that anybody who falsifies a document does it himself and does not go to a scribe.
Rav said that a certified document with both its text and the signatures of its witnesses written on erased parchment is valid, if it can be discerned that it was erased only once. But maybe he erased the document and the signatures, wrote a new document, forged the signatures, and re-used the certification? Rav answers that such a document is certified not from the certification written in it but from the signatures; thus, the forger gains nothing.
Art: Drawing Board Pipe Onions And Sealing Wax by Van Gogh
If the witnesses leave a space of two lines, the document becomes invalid. However, if they fill the space with the signatures of witnesses who are either relatives or otherwise ineligible to be witnesses, such as gamblers, the document is valid. This is similar to the fact that a hole of three hand-breadths in the covering of a sukkah invalidates it, but a patch of covering made of unfit material can be up to four amot.
Art: A Trompe L'Oeil With A Pewter Ink Stand, Books And Papers by Edwaert Collier
In a regular document, the witnesses sign immediately at the end of the document's text, thus precluding the possibility of tampering with it.
In contrast, a "bound" document requires that the witnesses sign between each fold. However, this opens a possibility of forgery.
Should we be concerned that, having the witnesses already signed above, he will write an additional clause at the end of the document that benefits him? - No, because the words "firm and established" are written at the end of a bound document.
What if he erases the words "firm and established," adds to the document, and then writes the words "firm and established" again? - Additions do not invalidate the document, but erasures, even certified with "firm and established", do invalidate it.
Art: Still Life with Documents by John Turing
Two kinds of documents are “plain” and “folded” or “bound.” A plain document is written in the usual fashion, with the pertinent information in a single, unbroken body of text.
Folded or “bound” document is written in the following manner. The scribe writes the first line and leaves the second line blank. He then folds the written line forward onto the blank blank and sows (“binds”) the fold shut. He then repeats this process for subsequent lines.
The Sages created the “bound” document, which was very hard to produce, to prevent Kohanim from rashly divorcing their wives. A Kohen cannot remarry his wife because she has become a divorcee. Now that he is first required to find a scribe who knows how to produce a “bound” Get, he will make peace with her. Commercial documents can also be “bound.” Not widely used even in the time of the Mishna, the “bound” document went entirely out of use by the 10th century.
Art: The scribe by John Frederick Lewis
They sent a ruling from Israel: If a son borrowed against his father's property and subsequently died, his son can seize it from purchasers.
Now, what is hard to understand here? The son stood to inherit his father. He sold some properties that would be coming to him in the future. Later, he died and thus never inherited those properties. Now, his son (a grandson) can tell the buyers, "My father sold you property that he stood to inherit but never inherited, so the sale is void. I inherit it not from my father but directly from my grandfather." In this case, the rule that the grandson inherits directly from the grandfather is derived from the following: "In place of your fathers shall be your sons..."
So what is difficult? That "In place of your fathers..." refers to blessings, not monetary laws.
Art: Grandfather's Jack in the Box by Arthur Boyd Houghton
Consider the case where a house collapsed on a son and his mother. Since it is not known who died first, the son's paternal brothers claim that perhaps the mother died first, the son inherited her, and they should inherit him. The mother's relatives (for example, her paternal brothers) claim that perhaps the son died first, so he never inherited anything, so they inherit the estate.
Unlike in the case of a father and son, here the claims of both sides are equally based on "perhaps," and therefore, both Beit Shammai and Beit Hillel agree that they divide it.
Rabbi Akiva says that Beit Hillel and Beit Shammai also argue in this case, but Ben Azzai said to Rabbi Akiva, "We are in enough pain over what they disagree, and now you come to dispute a unanimous decision?"
Art: Backyards of Old Houses in Antwerp in the Snow by Van Gogh
Consider the following case. A house collapsed on a son and his father, and it is not clear who died first. The son had nothing, but he had debts and the obligation to pay Ketubah to his wife.
The son's creditors claim that perhaps his father died first. Then, the inheritance passed to the son before he died, and they could collect. The father's inheritors claim that perhaps the son died first. Thus, when the father died, they inherited his property directly, leaving nothing for the son's creditors.
Beit Shammai says that the father's heirs and the son's creditors divide the money, but Beit Hillel says that the property remains in the possession of the father's heirs. We can understand Beit Hillel's reasoning, but what is Beit Shammai's reasoning? They say that a loan document is considered as if it has already been collected, which bolsters the creditors' claim.
Art: Cry of the prophet Jeremiah on the Ruins of Jerusalem by Ilya Efimovich Efimovich Repin
